Niaz (Niaa 2002 s. 104: Pending appeal)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mr CMG Ockelton |
| Judgment Date | 25 November 2019 |
| Neutral Citation | [2019] UKUT 399 (IAC) |
| Date | 25 November 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2019] UKUT 399 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr F Farhat, Gulbenkian Andonian Solicitors, for the Claimant;
Mr S Kotas, Senior Home Office Presenting Officer, for the Secretary of State.
Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931
R (on the application of AB) v Secretary of State for the Home Department [2017] EMCA Civ 59; [2017] Imm AR 1154
R (on the application of Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070; [2019] Imm AR 1316; [2019] INLR 715
SR (Algeria) v Secretary of State for the Home Department [2015] EWCA Civ 1375; [2016] INLR 691
Saimon (Cart Review: “pending”) [2017] UKUT 371 (IAC); [2018] Imm AR 188
Secretary of State for the Home Department v Draga [2012] EWCA Civ 842
European Convention on Human Rights, Article 8
Immigration Act 1971, section 3C
Immigration Rules HC 395 (as amended), paragraphs 276A-C & 276ADE
Nationality, Immigration and Asylum Act 2002, section 78, 92 & 104
Tribunals, Courts and Enforcement Act 2007, sections 11 & 13(8)(c)
Immigration — leave to remain — long residence — indefinite leave to remain — procedure and process — permission to appeal — appeal ‘finally determined’ — section 104 of the Nationality, Immigration and Asylum Act 2002 — pending appeal — refusal of permission to appeal quashed on judicial review
The Claimant, a citizen of Pakistan, entered the United Kingdom in 2004 as a student. In April 2009 he applied for leave to remain as a spouse of a person present and settled in the United Kingdom. The Secretary of State for the Home Department refused that application. The Claimant made a further application and was granted leave to remain from 2 September 2009 to 2 September 2011. Although his leave was curtailed in September 2010, he successfully appealed that decision. In the meantime, the Claimant had applied for leave to remain relying on Article 8 of the ECHR. He was granted discretionary leave for a period of three years. In September 2012 the Claimant applied for indefinite leave to remain on the basis of ten years' continuous lawful residence in the United Kingdom. That application was refused by the Secretary of State in December 2015 by means of a decision including the refusal of the Claimant's human rights claim.
On appeal, the First-tier Tribunal (“FtT”) agreed with the Secretary of State that the Claimant could not meet the requirements of paragraph 276B(i)(a) of the Immigration Rules HC 395 (as amended), as he did not have lawful leave between 7 April 2009, when his statutorily extended leave under section 3C of the Immigration Act 1971 had expired, and 2 September 2009, when he was granted further leave to remain. The FtT considered the Claimant's private life by reference to paragraph 276ADE(1) but concluded that he did not satisfy its requirements. Finally, the FtT held that the Claimant's case under Article 8 of the ECHR outside the Rules could not succeed and dismissed the appeal. The Upper Tribunal (“UT”) refused permission to appeal which meant the Claimant's appeal was no longer “pending” within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
The Claimant instructed his solicitors to begin judicial review proceedings ten days after the UT's refusal of permission to appeal. He claimed that he did, in fact, meet the requirements of paragraph 276B of the Rules. In refusing permission, the High Court held that the FtT had correctly concluded that there was a gap of five months in lawful residence. The Claimant was detained and issued with a notice of removal. He applied for permission to appeal to the Court of Appeal. The High Court refused to stay the Claimant's removal on the ground that his removal would not nullify the pending appeal before the Court of Appeal and that, if he were ultimately successful, there would be no barrier to his return to the United Kingdom. The Claimant was removed to Pakistan in August 2018.
In January 2019 the Court of Appeal granted the Claimant permission to appeal and remitted the case to the High Court which quashed the UT's refusal of permission to appeal. The UT issued a notice to the effect that the appeal would be treated as abandoned, subject to submissions. The Claimant's solicitors submitted that the appeal should not be treated as abandoned on the ground that the phrase “leaves the United Kingdom” in section 92(8) of the 2002 Act required the Claimant to depart from the United Kingdom voluntarily.
Held, dismissing the appeal:
(1) An appeal was finally determined for the purpose of section 104 of the 2002 Act even during the period when a judicial review of the UT's refusal of permission to appeal might be made or whilst an application for such a judicial review was awaiting decision. Section 104(2) listed three specific situations in which an appeal was not finally determined. Subsection (2) did not mention judicial review. If the legislature had intended to include judicial review in the list, it would have done so. There was no reason for assuming the legislature intended section 104(2) to be merely a non-exhaustive set of examples of when an appeal was not to be treated as finally determined. The prohibition in section 78 of the 2002 Act on removal whilst an appeal was pending required legal certainty on that issue. As a general matter, a person who had a pending appeal, and who was removed by the Secretary of State pursuant to her immigration powers, did not thereby cause their appeal to be abandoned under section 92(8) of the 2002 Act. The meaning of “leaves the United Kingdom” in that context had been authoritatively determined by Sales LJ in SR (Algeria) v Secretary of State for the Home Department[2015] EWCA Civ 1375 (paras 24 and 25).
(2) An appeal which had been finally determined ceased to be pending: Saimon (Cart Review: “pending”)[2017] UKUT 371 (IAC) considered. In the case of an application for permission to appeal to the UT under section 11 of the Tribunals, Courts and Enforcement Act 2007, the appeal was finally determined when it was no longer “awaiting determination”, which would be the position once the application was, in fact, determined. That was the inexorable result of section 104(2)(a) of the 2002 Act. Although section 104(2) was describing situations in which an appeal was not to be regarded as finally determined, the corollary was that, where none of the situations described in sub-paragraphs (a) to (c) applied (and the appeal had not lapsed or been withdrawn or abandoned), the appeal in question must be treated as having been finally determined. Any other result would mean the Secretary of State could never safely assume that the removal of an individual would not violate section 78 of the 2002 Act. The fact that the refusal of permission to appeal was quashed, as a result of the proceedings in the Court of Appeal after the Claimant had been removed, meant the Claimant's appeal must, from that point, be treated as again pending. There was nothing inherently problematic with the fact that an appeal might, under the statutory scheme, become pending after a period during which, compatibly with that scheme, the appeal had been treated as finally determined (paras 29 and 30).
(3) The Secretary of State had not acted contrary to section 78 of the 2002 Act in removing the Claimant because, at the time, the Claimant did not have a pending appeal. The UT was seized of the Claimant's appeal. Although the UT granted permission to appeal against the decision of the FtT, following the quashing of the UT's refusal, it was for the Claimant to show that the FtT's decision contained an error of law, such that that decision should be set aside. In R (on the application of Ahmed) v Secretary of State for the Home Department[2019] EWCA Civ 1070, the Court of Appeal found the wording of paragraph 276B of the Rules clear and that sub-paragraphs (i) to (v) were separate, freestanding provisions, each of which had to be met. There was also a marked contrast in the drafting of the definitions of “continuous residence” and “lawful residence” in paragraph 276A. Differences in drafting should not be read as accidental or unintended: R (on the application of Ahmed) applied. There was no error of law on the face of the FtT's decision. The Judge made a correct finding regarding the operation of paragraph 276B, on the facts of the Claimant's case. It had not been shown that the Judge erred in respect of the findings on paragraph 276ADE or in his analysis of Article 8, outside the Rules (paras 32 and 35).
The Hon. Mr Justice Lane:
[1] The appellant is a citizen of Pakistan who entered the United Kingdom in 2004, aged 27, as a student. In April 2009, the appellant applied for leave as a spouse of a person present and settled in the United Kingdom. That was rejected by...
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